Monday, 28 January 2013

Parallel decisions of the Refugee Review Tribunal that did
not accept that a pair of Bangladeshi men were “homosexual, or had sex, sexual
experiences, or a homosexual relationship with [each other] or any other males
in Bangladesh or Australia” were overturned on appeal when the Federal Magistrates Court noted that
a compact disc given to an expert had been supplied to the Tribunal, apparently
showing the two men having sex with each other.

In the case, called SZQYU v Minister for Immigration, Federal Magistrate Robert Cameron stated that before the
Tribunal: “could find that the applicants were not homosexual the Tribunal had
to deal… with their allegation that their relationship had a physical
dimension. It did this by concluding that neither of them had ever had sex with
a male, including each other. However, in order to reach that particular
conclusion, it was necessary that the Tribunal consider the evidence before it
relevant to that subject. The evidence of the applicants …was rejected on
credibility grounds. The only other evidence on the subject was what [the
expert] Dr Andrews said was depicted on the disc but that was not discussed by
the Tribunal.”

In his report Dr Andrews indicated that he had interviewed the applicants and had viewed a compact disc of photographs of them having sex. He
also indicated that SZQYV had told him that he had had his first sexual
experience with a boy when he was fifteen years old and had had sex with “one
other man” in Bangladesh before he came to
Australia. SZQYV also told Dr Andrews that he met SZQYU in 2005 (in Bangladesh) and that, while
they were physically affectionate and would often kiss, they did not have sex
with each other until about three months after his, SZQYV’s, arrival in
Australia. Dr Andrews concluded that SZQYV and SZQYU were homosexual and in a
homosexual relationship.

The Tribunal had statedthat it had: “ considered Dr Andrews’ report and his view that the
applicant is homosexual and that the photographs on the compact disc depict the
applicant having sex with [the other applicant]. The Tribunal has taken
detailed oral evidence from the applicant since Dr Andrews prepared his report
and finds Dr Andrews’ earlier assessment does not overcome the Tribunal’s
concerns about the applicant’s evidence.”

Federal Magistrate Cameron rejected this approach: “However,
in neither case did the Tribunal say that it had considered the evidence
contained in Dr Andrews’s report as material relevant to its decision.
Specifically, it made no reference to the photographs of the applicants having
sex beyond referring dismissively to Dr Andrews having a “view” that that was
what they depicted.”

Western Australia's Family Court has recently allowed an adoption by a gay
co-father of twins conceived through surrogacy in India.

In the
unreported case, called B and Another, Justice Crisford could only
allow the adoption to proceed if she found that Mr B's partner, Mr M was not
only the genetic father of the child, but the legal father of the child.

Mr B sought a step-parent adoption of the children. The twins were born as a result of a surrogacy
procedure which took place at a fertility clinic in Mumbai. The procedure was
carried out by fertilising eggs from an anonymous egg donor with Mr M’s sperm.
The fertilised eggs were then implanted in a surrogate, Mrs S, who gave birth to
the twins. Mrs S, her
husband and Mr M entered into a surrogacy agreement in December 2009 which was
binding under Indian law. In accordance with that agreement, Mrs and Mr S
relinquished all their rights to any children born of the surrogacy procedure,
and covenanted not to engage in any legal proceedings in relation to their
rights or custody of the children. The surrogacy agreement declared that Mr M is
the ‘intended parent’ of the children. The surrogacy agreement makes no mention
of Mr B.

Upon their birth in 2010
Mrs S gave the children into the care of Mr M and Mr B, who visited India for
that purpose. Mr M was named as the father of the children on their Indian birth
certificates. No mother is named on the birth certificates. Mr M then applied for Australian citizenship for both
children on the basis of their parentage. He provided DNA samples from the
children and himself so that a parentage testing procedure could be performed at
a laboratory in Sydney. The test results confirmed that Mr M has a 99.9% chance
of being the "genetic parent" of the children. The Department
of Immigration and Citizenship registered each child as an Australian citizen by
descent on 7 August 2010. After the decision Mr M and Mr B returned to Australia
with the children. Both children have lived with Mr M and Mr B since their
birth. Mr M is an Australian citizen and Mr B is a Canadian citizen with
permanent residency status in Australia.

Mr B, Mr M and the children were residing overseas.

Policy issues

Her Honour noted the "well
crafted" judgment in Ellison
and Karnchanit, in which Justice Ryan determined that under the Family
Law Act an intended father from Queensland was the legal father of a child
born in Thailand via surrogacy.

Justice Crisford noted that there was a
different factual and legal matrix in this case. For one, it was not being
decided under the Family Law Act, but the Adoption Act of
Western Australia.

To be eligible to adopt, Mr B had to fulfil the definition of a ‘step-parent’ for the
purposes of a step parent adoption, and therefore Mr M would have to be defined
as either a ‘birth parent’ or ‘adoptive parent’ of the children.
Artificial Conception
ActHer Honour found that Mr M would NOT be a parent for
the purposes of the Artificial Conception Act. Section 6A of the Artificial
Conception Act 1985 (ACA) refers to the female partner of a woman who
gives birth and has no application here. The rules
relating to parentage under the ACA would seem to exclude Mr M from being the
father. Section 7 states: (2) Where -

(a) a woman becomes pregnant in consequence of an artificial
fertilisation procedure; and

then for the purposes of the law of
the State, the man referred to paragraph (b) -

(c) shall be conclusively
presumed not to have caused the pregnancy; and

(d) is not the father of
any child born as a result of the pregnancy. An artificial
fertilisation procedure is defined for the purposes of the ACA as any:
(a) artificial insemination procedure; or

(b)
in vitro fertilisation procedure.Artificial insemination procedure and in
vitro fertilisation procedure are then defined.

Her Honour, findng that
IVF had been used, found therefore that Mr M was not the father under
the Artificial Conception Act. This is entirely consistent with a
matter questioned in 2011 by Justice Watts in the Family
Court.

Ordinary meaning

Her Honour went on to say
that the court could consider who was a "father" or "parent" in the ordinary
meaning of the word.

Mr M declared to the Department of Immigration and
Citizenship that he was the father of the children, after a DNA test found that
he was 99.9% likely to be the father.

Her Honour stated: "Although the Court is satisfied that Mr M has
established on the balance of probabilities that he is the biological or genetic
father of the twins, it does not automatically follow that the state law
recognises either him as a parent or Mr B as a
step-parent....There
are certified copies of overseas birth certificates showing Mr M as the father.
The certificates were accepted by the Department of Immigration and Citizenship
in assessing the issue of citizenship and the provision of passports.
One
overarching consideration is that since July 2010 Mr M and Mr B have acted as
parents to these children. They have fulfilled that role for over two years
without input from any other person who might be seen as a parent.
..To suggest
that Mr M is anything other than a parent or a father within its ordinary
meaning is to turn a blind eye to the reality of "family" in present day
society. It is also turning a blind eye to the reality of the situation
presently before the Court. The objective facts surrounding the birth and the
manner in which various agencies have treated those circumstances coupled with
the fact of the genetic father acting in that role since the birth of the twins
points to the use of an expanded definition of parent.
To adopt any other
interpretation would serve no purpose in addressing any public policy issues if,
indeed, any exist. It would serve no purpose in enhancing the future welfare and
best interests of these children.As the
Australian Human Rights Commission submitted in Ellison "the Court really needs to take children as it finds
them". There is no valid reason to disadvantage children of surrogacy
arrangements."

Her Honour then went on to make the proposed
adoption order, finding that it would be in the interests of the children,
including their identity and their long term
welfare.

Comment

Although the decision is limited
to the particulars of Western Australia's Adoption Act, there are some
significant features of this case:

The court looked at the reality of who is a parent. If a person can be the
genetic parent of a child, recognised on the child's birth certificate as the
parent, the mother and her husband having relinquished parenting by virtue of
the surrogacy contract, with the father and his partner having undertaking the
parenting for the children since their birth for two years, why would the court
not recognise the reality?

The provisions of the Artificial Conception Act are much like the Status of
Children Act (NSW) to which Justice
Watts of the Family Court questioned whether or not a father would be a
"parent" of a child conceived through a surrogacy arrangement. His Honour then
went on to say: "I note that Status of Children acts are generally more
applicable to the protection of a sperm or egg donor in more conventionally
assisted reproductive procedures."

By looking at the reality of the situaiton, her Honour has possibly opened
the door for more cases in which an intended father may be considered to be the
father of a child.

It was only because of the position of the WA Department for Child
Protection that there was no investigation of the views of the surrogate or her
husband. Otherwise it is likely that in line with the decision in
Ellison such a costly and slow procedure would have occurred. Mr B and
Mr M got lucky.

This case is an illustration of how the law can cater for unintended cases.
The Adoption Act was intended to apply to homegrown adoptions.
Accordingly there would be an adoption plan. Her Honour saw that in light of the
surrogacy contract there was no need for that.

This case is also an illustration of how in other States such a step might
not be taken. In Queensland, for example, adoption by same sex couples is
banned, which also means that a decision like this could never occur under
current laws in Queensland.

Finally, this case is yet another illustration about why there needs to be
reform about who is or who is not a parent through a surrogacy arrnagement, and
some common sense, as seen in this case, is welcome. There have been a series of
cases in the Family Court in which different approaches were taken about who is
or is not a parent. To have a clear legislative framework to acknowledge that if
someone is recognised by the Department of Immigration and Citizenship as a
"parent" that they are also recognised as being parents under the Family Law Act
and relevant State legislation such as the Artifical Conception Act, would seem
a commonsense and long overdue step.

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.